There has been much speculation about the expected criminal indictment of former Eliot Spitzer, but relatively little about Client No. 9’s co-conspirator, Ashley Alexandra Dupre (AKA “Kristen”). In reality, she faces not just possible criminal but civil charges while rapidly losing her own ability to sue for defamation and privacy violations. With the reported $1 million deal to pose for Hustler magazine, civil litigation may well be considered to ensure that Dupre does not enrich herself on the scandal.

The most obvious criminal charges that Dupre faces is prostitution, which in the District of Columbia is often given relatively light punishment. For example, there are a variety of prostitution related crimes on the books. Section 22-2701 is the most common: inviting for purposes of prostitution. This is usually used for “street walkers” but is generally defined:

§ 22-2701: Inviting for purposes of prostitution prohibited
(a) It shall not be lawful for any person to invite, entice, persuade, or address for the purpose of inviting, enticing, or persuading, any person or persons in the District of Columbia for the purpose of prostitution or any other immoral or lewd purpose. The penalties for violation of this section shall be a fine of $500 and no less than one day but no more than 90 days imprisonment for the first offense, a fine of $750 and no less than one day but no more than 135 days imprisonment for the second offense, and a fine of $1,000 and no less than one day but no more than 180 days imprisonment for the third and each subsequent offense. Any person convicted of a violation of this section may be sentenced to community service as an alternative to, but not in addition to, any term of imprisonment authorized by this section.

(b) Inviting, enticing, persuading, or addressing for the purpose of inviting, enticing, or persuading, for the purpose of prostitution includes, but is not limited to, remaining or wandering about a public place and:
(1) Repeatedly beckoning to, stopping, attempting to stop, or attempting to engage passers-by in conversation for the purpose of prostitution;

(2) Stopping or attempting to stop motor vehicles for the purpose of prostitution; or

(3) Repeatedly interfering with the free passage of other persons for the purpose of prostitution.

Under this provision, Dupre would be looking at a longer sentence than Spitzer but only 135 per count.

The penalty is much higher under Section 22-2707 for Procuring or Receiving Funds for Assignation:

§ 22-2707: Procuring; receiving money or other valuable thing for arranging assignation
Any person who, within the District of Columbia, shall receive any money or other valuable thing for or on account of arranging for or causing any individual to have sexual intercourse with any other person or to engage in prostitution, debauchery, or any other immoral act, shall be guilty of a felony and, upon conviction, shall be punished by imprisonment for not more than 5 years and a fine of not more than $1,000.

Operating such a service as the Emperor’s Club brings an equally high potential sentence for Dupre’s former employers. There are also a host of other charges for Dupre such as tax evasion, conspiracy etc.

For Dupre, criminal charges are likely to be the limited of her liability but that will depend on Silda Wall Spitzer. Silda could sue Dupre for the injury caused by this relationship. The most obvious is loss of consortium and alienation of affection. As discussed here and here, such cases have been brought successfully against lovers by spouses. There is no reason why it cannot be brought against a prostitute or house of prostitution when there is (as here) a long relationship.

Historically, the common law allowed torts of alienation of affection and “criminal conversation” by betrayed spouses. They were both based on “impairment of consortium” and constituted intentional torts. Damages were based on “humiliation, embarrassment, mental anguish and loss of consortium,” Clark, Law of Domestic Relations, Sect. 12.3, at 663 (2d ed. 1987). Sometimes called “heart balm torts” these actions give spouses an action to strike back at those who intrude upon a martial relationship.

It seems doubtful that a successful woman like Silda would go after such people, but she could. More importantly, the recent disclosure of a possible $1 million deal for Dupre to pose in Hustler could push Silda toward a lawsuit to deprive Dupre from a windfall profit on the scandal. For the Hustler story, click here.

Notably, Ashley has been managing her MySpace and public persona, recently making it known that she is not ashamed of her lifestyle. Her edits on her Internet sites show round the clock tweaking of text and pictures. Click here As an aspiring singer, such attention (the fifth most searched named on the Internet) would be a dream.

However, Dupre may find it difficult to protect whatever is left of whatever existed of
“her good name.” Material on her sites are fair game and she is now a public figure (or at least a limited public figure) for the purposes of New York Times v. Sullivan. This means that she can only sue for statements that are knowingly false or made with reckless disregard of the truth. Moreover, she may be approaching a category of “libel proof” individuals, who are so notorious that it is difficult to injury their reputations (since they have only bad reputations).

Her attorney, notably, argued recently that Dupre is not a public figure and that she still claims property interest in all of these photos. Click here.

I do not think that she has reached a libel-proof level — just yet. However, it would be hard to see injury for someone who is a member of a call girl service. It would present an interesting case, however. Here you have a woman who seems to have divided her life between her existence as a call girl and her identity as an artist. The law, however, will merge the two for the purposes of any alleged injury to reputation, despite her effort to maintain a separate persona of “Kristen.”

Defamation could still be a protection, but an increasingly limited option for her. Privacy, however, could still have some viability. Even if notorious, she is entitled to the protection of the common law. To the extent that she has not revealed private facts on her Internet sites or through her public conduct, she could still claim the “publication of embarrassing private facts” against critics or gossip mongers. She could also claim “intrusion upon seclusion” and “false light” with regard to some stories.

Finally, and perhaps the most interesting, her celebrity status does represent some value. While past sex celebrities like Jessica Culter (the so-called Washingtonienne) ultimately declared bankruptcy, here, there is an obvious value from such attention. Use of her image for commercial purposes can be actionable as misappropriation. Of course, any profit making will have to coincide with any time served on the underlying crimes.

She already has a lawyer, but do not be surprised to see her acquire an agent. This is America where there are no good or bad celebrities. Just celebrities.